As part of the legal test for bias, the courts have created a fictional fair-minded observer (the FMO) to act as a conduit for reasonable public perception. A number of scholars have raised concerns that the FMO bears no resemblance to an average member of the public or reasonably reflects general public opinion. This chapter presents our original empirical pilot study on expert versus lay attitudes to judicial bias. The study compares responses of legal insiders (lawyers and judges) and nonlegal experts with a basic understanding of the law (law students) to leading cases on judicial recusal. We use vignettes based on real cases from England, Australia, and Canada that dealt with different claims of judicial bias (covering issues of race, prejudgment, and more). The study may allow us to draw conclusions about the similarities and differences between legal experts and laypeople in relation to the perception of judicial bias, and we suggest ways the full study can address methodological limitations in the pilot that would allow us to draw those conclusions with greater confidence.

Legal outcomes often depend on whether conduct is reasonable. But how do we judge what is reasonable? What are the relevant criteria? Legal theorists have long debated these questions. This chapter outlines some of the leading theories. It then describes recent experimental work probing whether those theories align with lay judgments of what is reasonable. The findings indicate that reasonableness is best understood as a hybrid concept – a product of multiple inputs. Working from this perspective, the chapter raises important additional questions about reasonableness – questions that experimental jurisprudence is well suited to explore.

This research paper aims to experimentally analyze how iusnaturalist and iuspositivist legal theories influence legal operators’ decisions when there are conflicts between law and morality, as well as to show that they interact and are codependently defined by other cognitive variables as a complex system.

Corporatism refers to the tradition of constitutional theories that argue that self-organized bodies, such as universities, churches, or labour unions, are independent and important components of a constitutional order. While in the twentieth-century corporatism became associated primarily with economic actors, a central question in corporatist theory was the broader constitutional status of non-state associations and organizations that had their own political powers to govern their members and engage in quasi-legislative activity. In arguing for the independent legitimacy of such diverse corporate actors, proponents of corporatism were united in criticizing more liberal visions of constitutionalism for its abstraction and formalism. Many corporatist theorists thus advocated a sort of societal constitutionalism, where constitutional norms are embodied in diverse institutions that are more proximate to individuals than the state – ranging from major professional and economic associations to a variety of civil society groups. This chapter analyses corporatism both as a tradition in constitutional theory and as an empirical phenomenon that arose in the interwar and post-war periods. It argues that corporatist ideas can contribute to a theory of democratic constitutionalism that emphasizes the importance of organized collective power, and not just the problem of regulating state coercion or distributing formal rights.

Guarantor institutions (such as electoral commissions and anti-corruption watchdogs, which supposedly comprise the so-called ‘fourth’ or ‘integrity’ branch of the state) are increasingly of interest to constitutional scholars. In a given political context, a guarantor institution is a tailor-made constitutional institution, vested with material as well as expressive capacities, whose function is to provide a credible and enduring guarantee to a specific non-self-enforcing constitutional norm (or any aspect thereof). Arguing that guarantor institutions are more trustee-like than agent-like in character, this chapter defends the claim that the design of any guarantor institutions should seek to ensure that it has: (i) sufficient expertise and capacity to perform its functions effectively; (ii) sufficient independence from political, economic, or social actors with an interest in frustrating the relevant norm it is meant to guarantee; and (iii) sufficient accountability to bodies with an interest in upholding the relevant norm.

States exhibit various commitments problems in creating international legal rules and institutions. International law is needed to solve collective action problems such as climate change, manage common pool resources, maintain peace, and realize justice. The paradox of commitment explains some of these commitment problems. States would benefit from more effective rules which reduce conflict, enable cooperation and coordination, and resolve collective action problems, but they are reluctant to restrict their own freedom in the name of those rules and the institutions tasked with interpreting and enforcing them. Constitutionalism is available as a language and process which can inform mechanisms for reducing states’ commitment problems. Drawing on legal philosophy, constitutional theory, and empirical social science, I propose to consider a form of global constitutionalism which encourages states to pre-commit to certain basic principles of international cooperation, institutions, and decision-making procedures. Without constitutional rules, international politics falls prey to power politics, vulnerable states are swept up by the brute force and inertia of the big military and economic powers, rule of law protections for states and individuals are weak, human security is at risk, and the threat of violence remains ubiquitous as the primary means of structuring the interaction among states.

This chapter examines the constitutional role of parties and partisanship. We begin by sketching a conception of constitutionalism as a mechanism for finding an equilibrium between different social interests. Appealing as this ideal of moderation has long been for many, we highlight its limits as a basis for democracy and progressive change. A desirable constitutional model must make space for political conflict and immoderation, and as we go on to argue, partisans and the associations they form are an important foundation for this. The final section connects these observations to the contemporary political world, in particular to the state of parties today and to some of the misplaced anxieties about ‘polarisation’ they give rise to.

This chapter argues that the relationship between administrative law and constitutional law is significant and that this relationship sheds light on the nature of both areas of law. The chapter develops the idea that administrative law regulates delegates and constitutional law regulates delegators. This idea, the chapter argues, helps us make sense of the nature and content of administrative law, as well as how it relates to constitutional law.

Populism in relation to constitutionalism is a widely discussed and critical, topic. In the literature on the phenomenon, there is a prevalence to identify populism as antithetical to constitutional democracy and as eroding the idea and fundamentals of constitutionalism. However, as this chapter will show, much depends on the definitions offered of populism and constitutionalism, and the analytical commitment to study both as historical phenomena with important contextual differences. As I will argue in this chapter, constitutionalism as such is a contested phenomenon, and populism frequently takes up different forms of critique on the predominant legal understanding of constitutionalism. Furthermore, populism is a phenomenon that manifests itself in different ways, displaying diverse guises depending on distinctive ideological position (left- or rightwing), but equally showing variety in terms of positioning regarding characteristic issues, such as sovereignty, the definition of the political community, or relations to constituent power.

There are two practices of constitutional review: the diffuse review by the judiciary with supreme courts as the final appellate body in common law countries and the concentrated review by constitutional courts outside the ordinary judiciary in civil law countries. Though we observe a tendency towards a convergence of diffuse and concentrated review, there are still differences. In this chapter, the comparative merits and problems of concentrated versus diffuse review are evaluated. In order to compare the types of apex courts, a normative concept of constitutional review is developed. According to this concept, the most important precondition for legitimate and effective constitutional review is the difference between judicial and political decision-making. Judges who are capable of respecting this difference, enhance social integration by establishing a specific mechanism to correct procedural and substantive injustices. When evaluated by this standard, neither supreme nor constitutional courts are superior. Rather, the problem of both practices concerns a gradual process of a judicialization of politics. More and more political questions are decided by apex courts with constitutional review power, thereby reducing political alternatives. In concluding, a division of labor between judges and legislators is suggested that promises legitimate and effective constitutional review enriching democratic governance.

Referendums trigger both enthusiasm and scepticism among constitutional theorists. The positive case for the referendum emphasises its ability to give the people a consequential voice on salient decisions, its capacity to break political deadlock and enrich the political agenda, its educational civic role, as well its anti-establishment and even radically democratic potential. The negative case, conversely, focuses on the referendum’s divisiveness, propensity to be manipulated by elites, and tendency to produce ill-informed decisions. Between these two poles are various attempts to evaluate the referendum as a complement to rather than replacement for representative institutions, and to stipulate conditions for its proper institutionalisation. The spread of sophisticated disinformation campaigns and the growing interest in deliberative innovations such as mini-publics also raise new questions about referendum design, safeguards, and legitimacy. This chapter takes seriously the democratic case for the use of referendums while revisiting three areas of concern: the ambiguous place of referendums within democratic theory, including its relationship to direct, representative, and deliberative democracy; the complex interplay between referendums as majoritarian tools and minority rights; and the novel opportunities and distinct challenges to informed voter consent in the digital era, not least disinformation and fake news.

It is common ground that a bill of constitutional rights regulates the relationship between individual and the state. Fundamental rights create negative obligations for the state – duties not to interfere with life, liberty, conscience, speech, privacy etc. To what extent, if at all, though, do fundamental rights also have a bearing on relations between individuals? Can they also obligate the state to actively promote liberty in society? Are they focused merely on state abuse but silent on social inequality – or can they be mobilized as vehicles for social justice? Undeniably, constitutionally-sensitive conflicts routinely arise, e.g., between capital and labour; between financial service providers and vulnerable consumers; between vulnerable groups themselves, and so on. However, the “constitutionalisation” of private law relationships has not always been seen as an unmixed blessing. A first concern is that the expansion of substantive constitutional norms beyond the negative basic liberties eliminates the domain of private law and private autonomy that is an essential characteristic of liberal societies. A second concern is that constitutionalisation transfers substantial regulatory authority from democratic legislatures to constitutional courts. This chapter argues that that neither of these two concerns necessarily arises in connection with the doctrine of (indirect) horizontal effect.

Rather than occasions for law’s standstill in face of a political decision, emergencies are opportunities for legal, institutional and normative mobilization. The entry lays out the field’s basic areas of concern: the theoretical problem of containment of threats within a particular legal and political order, and the practical problems of definitions, authorizations, jurisdiction and temporality. If indeed the time frames of emergency are long and flexible, multiple and overlapping rather than “exceptional”, then law in emergencies is a constantly shifting space of opportunity in which normatively charged political projects can be manifested. To design legal and constitutional mechanisms that will better respond to threats, we should shift away from theories that perpetuate a static dichotomy between “norm” and “exception”, and study emergency as a dynamic field of legal and normative mobilization.